1. In this case the Commissioner of Income-tax, Calcutta, has referred to the Court under Clause (1), Section 66, Income-tax Act the question whether 'the Special Income-tax Officer' had any jurisdiction over the petitioner's case within the meaning of Sub-sections (4) or (5), Section 5, Income-tax Act.
2. The petitioners have been assessed to Income-tax in default of compliance with the requirements of notices directed to them under Clause (2), Section 23 and Clause (4), Section 22 by a gentleman to whom the name of 'Special Income-tax Officer' has been given in view of the provisions of Clause (4) Section 23 of the Act. Divers objections were taken to the assessment and an appeal was taken to the Assistant Commissioner which was rejected. An application was then made under Section 33 to the Commissioner himself to revise the order of the Assistant Commissioner. In connexion with that proceeding, the Commissioner has used his discretion and referred the question to us which I have set out.
3. Under the provisions of Section 23 of the Act and the cognate sections, the person who, in the ordinary course, has to make assessment is an officer called 'the Income-tax Officer,' and by Section 64 of the Act the place of assessment is defined as the place of the residence of the assessee or where he carries on business or, if more places than one, the principal place of business. The question before us turns upon Clause (4), Section 5 of the Act; The officer who, in this case made the assessment, was Babu P.L. Bhattacharya and the complaint of the assessees is that he was not the Income-tax Officer of the District in which the petitioners resided or had their principal place of business, though he is a person who has been appointed by the Commissioner of Income-tax under Clause (4), Section 5. Now, the Commissioner under that section has power given to him by the following words of the clause:
They shall perform their functions in respect of such classes of persons and such classes of income and in respect of such areas as the Commissioner of Income-tax may direct.
4. For the present purpose we may leave out of account the reference to 'classes of income' and the reference to 'areas.' So, the power given to the Commissioner is that the Income-tax Officers shall perform their functions in respect of such 'classes of persons' as the Commissioner may direct. We have been provided with a copy of the Order D/- 13th December 1927 under which a direction is given by the Commissioner with respect to the officer in question. It is as follows:
In exercise of the powers conferred on me by Section 5(4), Income-tax Act (U of 1922), I hereby appoint Babu Phanindra Lal Bhattacharya, Income-tax Officer, to perform all the functions of an Income-tax Officer in respect of those persons in Calcutta whose cases may be made over to him by me from time to time.
5. The question is whether:
those persons in Calcutta whose oases may be made over to him by me from time to time is a class of persons within the meaning of Clause (4), Section 5. I am clearly of opinion that it is not. It is not possible for any assessee or other person by looking to the definition given in this order to ascertain whether or not his case is one which is affected by it. This order requires a special direction to be given under it from time to time assigning not classes but individual cases to the officer in question. There may or may not be objections, serious or otherwise to such a course but I am clear that it is not a course warranted by Sub-section (4), Section 5 of the Act.
6. In those circumstances, it appears to me that we ought to answer the question put to us in the negative.
7. The result is that the assessment order made upon the petitioners cannot be supported.
8. The petitioner must have their costs of the reference.
C.C. Ghose, J.
9. I agree.
10. I agree.